Slavery reparation suit gets a reprieve

December 14, 2006|By Michael Higgins, Tribune staff reporter.

A federal appeals court revived part of a slavery reparations lawsuit on Wednesday, giving a measure of hope to descendants of slaves who are seeking damages from firms they say profited from the slave trade.

The 7th U.S. Circuit Court of Appeals rejected most of the plaintiffs' claims. But the court ruled that contrary to a trial judge's decision last year, companies could be held liable if they lied about their ties to slavery to avoid chasing away customers.

The appellate judges offered no opinion on whether the plaintiffs would ultimately win on their consumer-protection claims "but merely reject the district court's ruling that they are barred at the threshold," said Judge Richard Posner, writing for a unanimous three-judge panel.

Still, an attorney for the slave descendants called the opinion "a historic victory." U.S. District Judge Charles Norgle had thrown out all of their claims.

The plaintiffs had filed suit against more than a dozen companies, including Aetna insurance, Brown and Williamson Tobacco, CSX railroad, and financial services companies Lehman Brothers and JPMorgan Chase.

"This is the first judicial victory in the slave reparations movement," said Bruce Afran, a plaintiff attorney who argued the appeal in September. "All cases start out with a few defeats, and then they start to gain steam."

The plaintiffs have said they want proceeds from the lawsuit to become part of a trust fund that would benefit the descendants of slaves, possibly to fund education and health care.

Lawyers for several defendants either declined to comment on Wednesday or could not be reached.

Norgle had ruled that the statute of limitations on the plaintiffs' claims had run out, and that it would not be possible for the plaintiffs to show how they had been damaged by the acts of the defendants about 150 years ago.

On Wednesday, the appeals court ruled that Norgle should have dismissed the plaintiffs' claims without barring them from refiling. But the court otherwise largely agreed with Norgle's reasoning.

"It would be impossible by the methods of litigation to connect the defendants' alleged misconduct with the financial and emotional harm that the plaintiffs claim to have suffered," Posner wrote in a 16-page opinion.

Even if a plaintiff showed that Aetna insured slaves or that JPMorgan Chase lent money to slave-buyers, "there is no way to determine that a given black American today is worse off by a specific, calculatable sum of money ... as a result of the conduct," Posner wrote.

Posner compared the case to the descendant of a Union soldier, killed in battle, who attempts sue a gunmaker that sold guns illegally to the Confederacy.

The ruling was a mixed result for plaintiffs, according to Eric J. Miller, a law professor at St. Louis University who favors reparations.

"On the one hand, they've managed to survive in the appellate court with a reparations suit, which I think is remarkable," Miller said. "The problem is they haven't managed to sustain the main claim, being [the idea] that descendants can sue for reparations on behalf of their ancestors.... Posner has asserted that 150 years is just too long."

Afran said Wednesday that even if the plaintiffs go forward only with the consumer-protection claims, the potential damages could be enormous. "There are millions of African-Americans--and other Americans--who would not do business with those companies if they knew the truth," Afran said.